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2021 (4) TMI 33 - HC - Indian LawsDishonor of Cheque - Constitutional Validity of Appointment of the retired District Sessions Judge by the impugned Government Orders as Additional Court - section 138 read with Section 141 of Negotiable Instruments Act, 1881 - HELD THAT - The Law Commission had taken note of the experience of the judicial post for the purpose of appointment and conferment of power of Special Judicial Magistrates with the object of securing the expeditious disposal of criminal cases. The Joint Select Committee also took note of the criticisms against the system of Honorary Magistrates and expressed the view that proper way to deal with the arrears of petty criminal cases was to appoint sufficient number of stipendiary Magistrates as a wholesome deletion of the institution of Honorary Members would give rise to problems in some States. The Joint Select Committee suggested that provision be made for the appointment of Special Judicial Magistrates with certain modifications in the earlier system. One of the suggestions was that the appointees should either be persons in Government service or those who have retired from Government service. As a result of these deliberations, Section 13 of the Code of Criminal Procedure, 1973 came to be enacted in their present form. The Hon'ble High Court, vide order dated 19.08.2015, requested the State Government to intimate the cadre of the proposed 38 temporary additional Courts to be created in the State of U.P. to be manned by retired judges and contractual staff for disposing off such cases which constitute the majority of pendency i.e. motor vehicle challans, insurance claims and check bouncing matters, to the Court - Pursuant to the aforesaid letters of the High Court, the State Government, vide letter dated 16.10.2015, requested to the Hon'ble High Court that looking to the nature of the cases, decision with regard to the appointment of the Presiding Officer and staff be taken at the end of Hon'ble High Court. There are no warrant for placing a narrow construction on the words 'who holds or has held any post under the Government' to confine them to appointments of Government servants, present or past only, and to exclude members belonging to the subordinate Judicial Services. Furthermore, the duration of appointment has been restricted to one year at a time which would give the High Court an opportunity to observe the work of the appointee to enable it to decide whether or not to extend the appointment for a further period, if the workload justifies such continuance. We are, therefore, of the opinion that there is no error in the impugned Government Orders appointing the retired District Sessions Jude in temporary Additional Court to try the cases of motor vehicle challans, insurance claims and cheque bouncing matters. A bare reading of the aforesaid Section 142 of the Negotiable Instruments Act reveals that it governs taking of cognizance of the offence and starts with a non-obstante clause - the Judicial Officers, who have been appointed on 38 posts of Additional Courts created under the recommendation of 14th Finance Commission, are retired Judicial Officers belonging to U.P. Higher Judicial Services cadre and is superior to the Court of Judicial Magistrate of First Class, hence the claim of the petitioners being inferior Court than one prescribed under Section 142 of the Negotiable Instruments Act or not empowered under Section 13 of the Code of Criminal Procedure, 1973 does not arise as these Officers are the judicial officers of higher cadre. The instant writ petition is devoid of merit, which is liable to be dismissed - Petition dismissed.
Issues Involved:
1. Legality and constitutionality of the Government Orders dated 30.12.2015 and 26.07.2016. 2. Validity of the trial of an offence under Section 138 of the Negotiable Instruments Act, 1881 by Additional Courts presided by retired District and Sessions Judges. 3. Maintainability of the complaint case under Section 138 read with Section 141 of the Negotiable Instruments Act, 1881. 4. Jurisdiction and power of the Additional Courts created by the impugned Government Orders. Issue-wise Detailed Analysis: 1. Legality and Constitutionality of the Government Orders: The petitioners challenged the Government Orders dated 30.12.2015 and 26.07.2016, arguing that the creation of Additional Courts presided over by retired District and Sessions Judges was illegal and unconstitutional. The court examined the process of issuing these orders, noting that the creation of these courts was based on the recommendations of the 14th Finance Commission to address high pendency of cases. The High Court had requested the State Government to create these courts, which were to be manned by retired judges. The court found that the appointments were made following due procedure and were in line with Section 13 of the Code of Criminal Procedure, 1973, which allows the High Court to confer powers on retired judges to act as Special Judicial Magistrates. Thus, the court held that the Government Orders were legal and constitutional. 2. Validity of the Trial by Additional Courts: The petitioners argued that the trial of offences under Section 138 of the Negotiable Instruments Act by retired District and Sessions Judges was not contemplated by law and violated Section 142(1)(c) of the Act, which states that no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try such offences. The court rejected this argument, stating that the retired judges appointed as Special Judicial Magistrates were not inferior to serving Metropolitan or Judicial Magistrates. The court emphasized that these judges were conferred specific powers under Section 13 of the Cr.P.C. and were competent to try cases under Section 138 of the Negotiable Instruments Act. 3. Maintainability of the Complaint Case: The petitioners contended that the complaint case against the sole proprietorship firm was not maintainable under Section 141 of the Negotiable Instruments Act, as a sole proprietorship is not a "company." The court did not find merit in this argument, as the primary issue was the jurisdiction and power of the Additional Courts to try the case, which was already established as valid. 4. Jurisdiction and Power of Additional Courts: The court examined the jurisdiction and power of the Additional Courts created by the impugned Government Orders. It noted that these courts were created to handle cases like motor vehicle challans, insurance claims, and cheque bouncing matters, and the retired judges were given powers to act as Special Judicial Magistrates. The court found that the appointments and the conferral of powers were in accordance with Section 13 of the Cr.P.C., which allows the High Court to appoint retired judges as Special Judicial Magistrates for specific terms. The court concluded that the Additional Courts had the jurisdiction and power to try cases under Section 138 of the Negotiable Instruments Act. Conclusion: The court dismissed the writ petition, holding that the Government Orders creating Additional Courts presided by retired District and Sessions Judges were legal and constitutional. It further affirmed that these courts had the jurisdiction and power to try cases under Section 138 of the Negotiable Instruments Act, and the complaint case against the petitioners was maintainable. The petitioners' arguments regarding the invalidity of the trial and the maintainability of the complaint were found to be without merit.
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